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Canada: Reference case on anti-polygamy law can go ahead without Polygamist leader

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Vancouver Sun

The participation of Winston Blackmore, Canada's most notorious polygamist, would be welcome in the reference case on the anti-polygamy law's constitutionality, but the chief justice of the B.C. Supreme Court said Tuesday that it's not necessary. In a written decision, Robert Bauman said that not only is Winston Blackmore's participation and that of his 500 or so followers from the community of Bountiful, B.C. not necessary, there is no reason for taxpayers to pay their legal costs of participating in the reference case.

Blackmore was one of two men charged in January 2009 with practising polygamy, which has been a criminal offense since 1890. The charges were later quashed on a technicality and rather than appealing that decision, Attorney General Mike de Jong decided to refer two questions to the B.C. Supreme Court. The action was joined by the federal Justice Department.

Those two questions are: Is the anti-polygamy law consistent with the Charter of Rights and Freedoms? And, does the prohibition on polygamy require the involvement of a minor, exploitation, abuse of authority, a gross imbalance of power or undue influence?

So far, 12 interested parties have been accepted as participants in the case which is likely to go to trial in mid-November. Among the parties is Jim Oler, the other man charged in 2009 with polygamy. He is the bishop for the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful.

In his judgment, Bauman said while Blackmore's participation "would help in developing the record which will assist the court in answering the questions in the reference, but that participation is not 'necessary' . . . any more than is the participation of the [12 other] interested persons."

The chief justice noted, "No proceedings are extant against Mr. Blackmore. He may possibly face a prosecution under s.293 of the Criminal Code in the future, but that is pure speculation."

Bauman went on to say that while the outcome "may possibly, but not necessarily, affect Mr. Blackmore and his followers in future," that is not enough to grant them party status equal to the federal and provincial governments and to the court-appointed amicus who will argue that the law is invalid.

He also noted that Blackmore has filed a civil suit against the province for damages arising from the failed prosecution. Adding Blackmore to this case, Bauman wrote "would transform a reference case, which is not an adversarial proceeding . . . into just that."

However, if Blackmore and his congregation wish to be given status as interested parties, Bauman said he would grant that.

As for advancing Blackmore's legal costs, which were estimated to be $1 million or more, Bauman described it as an extraordinary request with no legal precedents.

The chief justice noted that the test for advance funding is a determination that an injustice would occur without that party's participation. He rejected that in Blackmore's case.

And while Blackmore had provided "fairly significant disclosure of his personal financial situation," Bauman said there was no evidence that the congregation was unable to raise the money.

What Canada's most notorious polygamist has to say about the practice might be interesting, but Chief Justice Robert Bauman of the B.C. Supreme Court says his participation is not necessary in determining whether the current anti-polygamy law is constitutional.

In a written decision released Tuesday, Bauman said Winston Blackmore's taking part might be helpful and even welcome, but it's not essential.

And what that means is that Blackmore and his 500 or so followers may be absent from the courtroom next November, when it's expected the reference case will go to trial.

Blackmore has threatened to boycott the trial and order his congregation not to participate unless they were granted equal standing with the provincial and federal governments and given a blank cheque for legal fees.

(That blank cheque was conservatively estimated to be worth $1 million or more, if Bauman had agreed to sign it.)

It will seem odd if the case does go ahead without the man who has brazenly held a polygamy summit, inviting politicians, journalists and documentary filmmakers into his home to meet his wives and more than 100 children.

Because there's no doubt that Blackmore and Bountiful are the genesis of this constitutional reference.

In January 2009, five years after RCMP began investigating the community of about 1,000 people, Blackmore was arrested and charged with one count of polygamy. Nineteen women were named on his indictment.

Blackmore is the spiritual leader to about half the community.

James Oler was also charged with one count of polygamy, with three women listed on his indictment. Oler is the bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), who replaced Blackmore in that role following his excommunication.

The charges against both men were quashed on a technicality. Rather than appealing that decision, Attorney-General Mike de Jong decided to refer two questions to the B.C. Supreme Court. The action was joined by the federal Justice Department.

Those two questions are: Is the anti-polygamy law consistent with the Charter of Rights and Freedoms? And, does the prohibition on polygamy require the involvement of a minor, exploitation, abuse of authority, a gross imbalance of power or undue influence?

But Bauman said Blackmore is not the "target" of the proceedings and has no greater interest in the case than the dozen other groups that have been accepted as interested parties.

"No proceedings are extant against Mr. Blackmore," the chief justice noted. "He may possibly face a prosecution under [Section] 293 of the Criminal Code in the future, but that is pure speculation."

And while the outcome "may possibly, but not necessarily, affect Mr. Blackmore and his followers in future," Bauman said, it's not enough to grant them equal status to the federal and provincial governments or to the court-appointed amicus, who will argue against government lawyers that the law is invalid.

Blackmore has filed a civil suit against the provincial government claiming damages for wrongful prosecution. Among his arguments in that case is that the law is unconstitutional, which is why Blackmore's lawyer, Joe Arvay, suggested rolling that part into the reference case.

Bauman rejected that, saying it would "transform a reference, which is not an adversarial proceeding ... into just that."

The constitutional issues go far beyond the little community in southeastern British Columbia, as is evidenced by the disparate groups already accepted as "interested parties": REAL Women, the Canadian Polyamorist Advocacy Association, children's-and women's-rights advocates and civil libertarians.

And despite his threatened boycott, it seems unlikely that Blackmore will stay away. Not only has he embraced the limelight in the past, he will probably not want to leave his fate -- and that of his congregation -- to the FLDS to defend. There's too much enmity between them.

But Blackmore might stay away.

He claims to be broke, although Bauman said Blackmore didn't prove that with the affidavit he filed.

Blackmore claims his congregation can't pay for a lawyer to represent them, which Bauman said was never proven.

And there's one other thing.

If Blackmore doesn't show up and the law is found to be constitutional, he can always blame his enemies, securing for himself the role of martyr.